lengthy periods before judicial authorisation of detention

In document Detained without trial: Fair Trials International‟s response to the European Commission‟s Green Paper on detention (Page 81-85)

 imposing an order which prohibits a defendant from living in, or moving to, a certain place (including prohibiting the defendant from attending sports or cultural events);

 a restriction on the defendant leaving Romania;

 a requirement to report at specified times to a police station;

 an obligation to avoid contact with specific persons;

 an obligation not to engage in specified activities relating to the alleged offence;

 an obligation not to drive a vehicle;

 an obligation to pay a financial surety in order to secure release; and

 an obligation to undergo treatment for addiction.

When under a movement restriction order, the defendant can be forced to wear an electronic tagging device. New powers, due to come into force in 2012, will allow courts to impose house arrest as an alternative to pre-trial detention.

Alternatives to pre-trial detention may be proposed by the defendant, his or her lawyer, close family members or the prosecutor. Some of the alternative measures to pre-trial detention can be imposed by the judge of his own motion.

Compensation is available for persons who have been held in pre-trial detention or whose freedom has been wrongfully restricted by alternatives to pre-trial detention. However, compensation is only available if the measure has been taken by the judicial authorities without observing the relevant legal provisions.300

Release pending trial: in practice

Romania‟s pre-trial detention population has dropped significantly from 10,831 in 1999 to 3,946 in 2009.301 However, the country has been criticised for the ill-treatment of detainees and the use of brutal mistreatment to extract evidence which has then been adduced in court.302 According to the 2010 US State Department Report, the regime for release pending trial is rarely used in practice.303 In 2008 the CPT raised concerns about the use of police cells to house pre-trial detainees.304

In Pantea v Romania305 the ECtHR made findings of multiple ECHR violations in relation to the applicant‟s treatment in pre-trial detention, which included being savagely beaten, denied medical treatment and transported for several days in a railway wagon in appalling conditions. It was almost four months before the applicant was brought before a judge, which the ECtHR found violated Article 5(4) ECHR. The Pantea case led to widespread reforms in

300

Article 504 of the Romanian Criminal Procedure Code

301 Source: Council of Europe Annual Penal Statistics – SPACE I 302

Amnesty International, Annual Report 2011: Romania

303

US State Department, 2010 Human Rights Report: Romania, p.6

304

Report to the Government of Romania on the visit to Romania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 9 June 2006, published 11 December 2008

305

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Romania.306 However, more recently the ECtHR has found Romania in breach of the ECHR due to lengthy delays before judicial authorisation of detention,307 excessive lengths of pre- trial detention,308 and inhuman and degrading pre-trial detention conditions.309

306

Pre-trial Detention in the European Union: An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU, Kalmthout et al, 2009, p. 807

307

Samoila and Cionca v Romania (App no. 33065/03), 4 March 2008, Toma v Romania (App no. 42716/02), 24 February 2009

308

Tanase v Romania (App no. 5269/02), 12 May 2009

309

Ciupercescu v Romania (App no. 35555/03), 15 June 2010, Carabulea v Romania (App no. 45661/99), 13 July 2010

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4 years

Maximum length of pre-trial detention in Slovakia

5%

Percentage of pre-trial detainees in Slovakia who are foreign nationals

Slovakia

The maximum period of pre-trial detention in Slovakia is 4 years.310 In 2010 there were approximately 1,500 pre-trial detainees in Slovakian prisons, who made up 15% of the total prison population.311 In 2009, 5% of pre-trial detainees were foreign nationals.312

Release pending trial: the law

Under the Slovakian criminal code pre-trial detention is only allowed if there is a justified concern that the defendant will:

 flee or hide, so as to avoid criminal prosecution or punishment (deemed particularly likely if: it is difficult to immediately determine the defendant‟s identity, he does not have permanent residence, or he would face a severe penalty if convicted);

 obstruct the criminal investigation; or

 repeat the criminal activity for which he is being prosecuted, or complete the criminal offence which he allegedly attempted.313

When considering whether to impose pre-trial detention the judge must hear from the defendant314 (whose presence is obligatory) and take into account his assets, the nature of the alleged offence and its consequences, and other circumstances of the case.

If the judge finds that one of the justified concerns exists then the defendant may still be released pending trial if:

 a trustworthy person offers a guarantee for the future behaviour of the defendant (the judge must deem the guarantee to be sufficient and acceptable);315

 the defendant gives a written pledge to lead an orderly life, particularly that he will not

commit any crime and he will comply with any duties and restrictions imposed on him (the judge must deem the pledge to be sufficient and acceptable);316 or

 the custody can be replaced by the supervision of a probation officer,317 or the payment of a surety of a designated amount.318

Alternatives to pre-trial detention include:

 an obligation on the accused to notify to a police officer, a prosecutor or a court of any change in residence;319

310

Pre-trial Detention in the European Union: An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU, Kalmthout et al, 2009, p.833

311

Source: ICPS, 31 December 2010

312 2009 Council of Europe Annual Penal Statistics – SPACE I 313

Section 71(1) Code of Criminal Procedure ("CCP")

314 Section 72(2) CCP 315 Section 80(1)(a) CCP 316 Section 80(1)(b) CCP 317 Section 80(1)(c) CCP 318 Section 81 CCP

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 an order that the accused person not enter certain localities, places or defined areas;320

 an order that the accused person remain at a specified place during specified times;321

 a ban on travel abroad;322

 a duty to report regularly to an office determined by the court;323

 a ban on contacting certain people or a ban on approaching a certain person at a distance closer than five metres;324

 a ban on executing an activity similar to which led to the commission of the crime;325

 a ban on driving a car and a duty to handover a driving licence;326

 an obligation to deposit money as a guarantee;327

 an obligation to undergo therapeutic treatment or treatment for addiction; and

 a duty to give up carrying a gun and other objects if appropriate.328

If one of these obligations is imposed as an alternative to pre-trial detention and is subsequently breached, the judge must reconsider whether pre-trial detention is necessary (i.e. it is not imposed automatically).329

Persons remanded in custody have the right to access legal advice without any third party hearing their conversation. Pre-trial detainees must be held in special remand prisons or in separate sections of normal prisons.330 Once they are admitted to the remand centre, non- national defendants must be informed of their right to contact their consular authority.

The Constitution states: "Everyone shall have the right to compensation for damage caused by an unlawful decision of a court, of other public authority or of a body of public administration or by improper official procedure."331 A person held in custody on the basis of an unlawful decision or incorrect administrative procedure is entitled to compensation amounting to one thirtieth of the national average salary for each day spent in custody. However, in order for compensation to be awarded the decision to impose pre-trial detention has to be annulled or amended, i.e. a mere acquittal does not suffice.

Release pending trial: in practice

Numerous violations of Article 5(1) and 5(4) have been found to have occurred as a result of excessive length of pre-trial detention and procedural shortcomings of review of pre-trial detention.332 The ECtHR has found Slovakia in violation of the Article 5(3) ECHR for imposing pre-trial detention for periods between two and three years without domestic courts

319 Section 80(2) CCP 320 Section 82(1)(c) CCP 321 Section 82(1)(e) CCP 322 Section 82(1)(a) CCP 323 Section 82(1)(f) CCP 324 Section 82(1)(h) CCP 325 Section 82(1)(b) CCP 326 Section 82(1)(g) CCP 327

Section 81 and 82(1)(i) CCP

328

Section 82(1)(d) CCP

329

Section 80(3) CCP

330

Section 3(1) of the Execution Act

331

Article 46(3)

332

See, for example, Karlin v Slovakia [2011] ECHR 1050, Gál v Slovakia [2010] ECHR 1905, Stetiar and Sutek v Slovakia [2010] ECHR 1820, and Lexa v Slovakia [2008] ECHR 886

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Most serious pre-trial detention

In document Detained without trial: Fair Trials International‟s response to the European Commission‟s Green Paper on detention (Page 81-85)